Martha Barajas Carillo v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA ELISA BARAJAS CARILLO, No. 15-73463
Petitioner, Agency No. A091-691-867
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District
Judge.
Petitioner Martha Elisa Barajas Carillo, a native and citizen of Mexico, seeks
review of a decision of the Board of Immigration Appeals (“BIA”) affirming the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
immigration judge’s (“IJ”) decision denying withholding of removal and protection
under the Convention Against Torture (“CAT”). We have jurisdiction under 8
U.S.C. § 1252(a) and deny the petition.
“We review ‘denials of . . . withholding of removal[] and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” Ling Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-Milian v. Holder,
755 F.3d 1026, 1031 (9th Cir. 2014)). “Credibility determinations are reviewed for
substantial evidence.” Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013).
“Under the substantial evidence standard, an adverse credibility finding is
‘conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.’” Id. (quoting Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011)).
Substantial evidence supports the BIA’s affirmance of the IJ’s determination
that Petitioner was not credible. In a sworn statement to an immigration official at
the border, Petitioner stated she had no fears or concerns about being returned to
Mexico and that she would not be harmed if she returned. She stated she had
“been going back and forth to Mexico to see [her] husband.” Her testimony at the
withholding of removal proceedings included “[m]aterial alterations in [her]
account of persecution[, which] are sufficient to support an adverse credibility
finding.” Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). Petitioner
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testified that she and her son had been kidnapped by her husband in California and
taken to Tijuana, Mexico, where they were held at her husband’s mother’s home
against their will for approximately two weeks. She testified that she was beaten
and sexually assaulted during that period. She testified that she escaped with her
mother-in-law’s assistance and drove to the border with her son and another man
her husband had kidnapped. When asked why she did not tell the officer at the
border about any of this, she stated, “I was afraid. I was already – I, I had trusted
somebody in TJ, sir, an agent, a federal agent to save me from that place, and the
only thing that happened to me, that agent called my husband and beat – my
husband beat me.”
The BIA found no clear error in the IJ’s decision denying withholding of
removal based on an adverse credibility determination, finding Petitioner
“provided inconsistent statements in support of her claim.” The BIA noted that the
IJ “found that the applicant was unable to adequately explain why she failed to
report the alleged abuse . . . to immigration officials.”1 Because Petitioner first
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The IJ considered Petitioner’s explanations that she was “nervous” and that she
either could not remember being asked whether she feared being returned to her
home country or did not understand the question but found “there is no reason to
believe that she could not have answered the questions” despite her nervousness,
and that she did not “explain why she would not have understood the question.”
The IJ, therefore, found these inconsistencies made Petitioner’s testimony of fear
of persecution not credible and not reliable.
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“affirmatively denied” a fear of returning to Mexico and later expressed that
precise fear, no reasonable adjudicator would be compelled to conclude Petitioner
is credible. See Li v. Ashcroft, 378 F.3d 959, 963 (9th Cir. 2004), superseded on
other grounds by statute, 8 U.S.C. § 1158(b)(1)(B)(iii).
The BIA also affirmed the IJ’s denial of CAT protection because the
inconsistencies in Petitioner’s testimony made her not credible. Thus, we uphold
the denial of CAT protection because Petitioner has not established that the
country conditions, standing alone, compel a contrary result. Shrestha v. Holder,
590 F.3d 1034, 1048–49 (9th Cir. 2010)
PETITION DENIED.
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